Sorom v. Coloplast, Corp. et al, No. 2:2019cv00866 - Document 31 (D. Nev. 2020)
Court Description: ORDER Granting 29 Motion for Protective Order. Signed by Magistrate Judge Elayna J. Youchah on 11/10/2020. (Copies have been distributed pursuant to the NEF - JQC)
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Sorom v. Coloplast, Corp. et al 1 Doc. 31 4 J Christopher Jorgensen Nevada Bar No. 5382 LEWIS ROCA ROTHGERBER CHRISTIE LLP 3993 Howard Hughes Pkwy, Suite 600 Las Vegas, NV 89169-5996 Tel: (702) 949-8200 Email: cjorgensen@lrrc.com 5 Attorneys for Defendants 2 3 6 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 7 MICHELLE SOROM, Case No.: 2:19-cv-00866-RFB-EJY 8 Plaintiff, 3993 Howard Hughes Parkway, Suite 600 Las Vegas, NV 89169 9 AGREED ORDER FOR PROTECTION OF CONFIDENTIAL INFORMATION vs. 10 11 12 COLOPLAST CORP., a Delaware Corporation; COLOPLAST MANUFACTURING US, LLC, a Delaware Corporation, Defendants. 13 14 15 I. Scope of Order 16 Disclosure and discovery in this proceeding may involve production of confidential, 17 proprietary, and private information for which special protection from public disclosure 18 and from any purpose other than prosecuting this litigation would be warranted. 19 Accordingly, the parties hereby stipulate to and petition the court to enter this Agreed 20 Order for Protection of Confidential Information in this matter. 21 II. The Order 22 By stipulating to this Protective Order (the "Order"), the parties have agreed to be bound 23 by its terms and to request its entry by the presiding district or magistrate judge. It is 24 hereby ORDERED as follows: 25 A. DISCOVERY PHASE 26 1. For purposes of this Order, the following definitions shall apply: (a) the terms 27 "document" and “electronically stored information” (“ESI”) shall have the full 28 meaning ascribed to them by the Federal Rules of Civil Procedure ("Fed. R. Civ. -1112763022.1 Dockets.Justia.com 1 P."); and (b) the term "producing party" shall be defined as any party or non-party 2 who is required to produce or provide materials or testimony containing 3 confidential information. 3993 Howard Hughes Parkway, Suite 600 Las Vegas, NV 89169 4 2. A producing party may designate as "CONFIDENTIAL" any material, including 5 any documents or ESI, the producing party believes in good faith constitutes or 6 discloses information that qualifies for protection pursuant to Fed. R. Civ. P. 7 26(c), specifically information that is trade secret or other confidential research, 8 development, or commercial information, and materials that are deemed 9 confidential under Federal Drug Administration ("FDA") regulations and Health 10 Insurance Portability and Accountability Act ("HIPAA") statutes and/or 11 regulations. 12 3. Confidential information may be further designated as "HIGHLY 13 CONFIDENTIAL" if a Defendant produces materials that it believes in good 14 faith would, if disclosed, cause substantial economic harm to the competitive 15 position of the entity from which the information was obtained because it is 16 HIGHLY CONFIDENTIAL research and development material on a new 17 product that has not been approved or cleared by the FDA or a similar regulatory 18 body or reflects a party's price competitiveness in the market or marketing 19 business strategies of a party concerning a current or new product. The plaintiff(s) 20 will inform the producing party of its intent to disclose such information to any 21 individual who is currently, or who at any time during the pendency of this 22 litigation becomes, a consultant to a competitor of the producing party in the 23 pelvic organ mesh business, or is a consultant to an entity actively investigating 24 entering such business, and plaintiff(s) will follow the procedures for disclosure 25 of such materials to such individual as provided in this Protective Order. 26 4. Challenges to Designations or Redacted Information: Any party may at any 27 time challenge the redaction or the designation of information as CONFIDENTIAL or 28 HIGHLY CONFIDENTIAL by providing written notice of its objection to the -2112763022.1 3993 Howard Hughes Parkway, Suite 600 Las Vegas, NV 89169 1 designating party, or, in the case of a deposition, either on the record at a deposition or 2 in writing later. Any challenge to the confidentiality designation must be specific as to 3 which document(s) or other material is being challenged by listing Bates numbers or 4 other identifying information if no Bates numbers are available; categorical or blanket 5 challenges are not permitted. If, after a meet-and-confer process, the parties cannot reach 6 agreement, either the designating party or challenging party may, on reasonable notice, 7 apply for an appropriate ruling from the Court. The disputed material shall continue to 8 be treated as designated, or redacted, until the Court orders otherwise. In any such 9 application concerning a ruling on confidentiality or redacted information, the party 10 claiming the designation of confidentiality or redaction has the burden of establishing 11 that such confidential designation or redaction is proper. 12 5. No person or party subject to this Order shall distribute, transmit, or otherwise 13 divulge 14 CONFIDENTIAL, except in accordance with this Order. 15 6. any material marked CONFIDENTIAL or HIGHLY Use of Confidential Material Limited to this Action: Any document or other 16 material which is marked CONFIDENTIAL or HIGHLY CONFIDENTIAL, or the 17 contents thereof, may be disclosed to or used by only this Court and its personnel, court 18 reporters, deponents, a party, a party's attorney, a deponent’s attorney, paralegal, expert 19 witness, or consultant, and only for the purpose of this action or appeal therefrom. 20 Nothing contained in this Order shall prevent the use of any document or the contents 21 thereof, at any deposition taken in this action. If a party intends to use material that has 22 been marked as HIGHLY CONFIDENTIAL at the deposition of a non-producing party 23 or individual, or an employee or former employee of a non-producing party or individual 24 in this litigation, then the party shall notify the producing party ten (10) days in advance 25 of the deposition that it intends to use that category of material. If the parties cannot agree 26 on parameters for usage of the material at the deposition, then the parties will seek the 27 direction of the Court as to the utilization of that category of material in the deposition. 28 7. Access to Confidential Material: If a party or attorney wishes to disclose -3- 112763022.1 1 any document or other material which is marked CONFIDENTIAL or HIGHLY 2 CONFIDENTIAL, or the contents thereof, to any deponent or to any person actively 3 working on, or retained to, work on this action (other than employees of a party’s 4 attorney), e.g., an expert witness or consultant), the party or attorney making the 5 disclosure shall do the following prior to disclosing any CONFIDENTIAL or HIGHLY 6 CONFIDENTIAL information or materials to such person: 7 (a) Provide a copy of this Order to the person to whom disclosure is made; 8 (b) Inform the person to whom disclosure is made that s/he is bound by this 3993 Howard Hughes Parkway, Suite 600 Las Vegas, NV 89169 9 Order; (c) 10 Require the person to whom disclosure is made to sign an acknowledgment and receipt of this Order; 11 (d) 12 Instruct the person to whom disclosure is made to return or, in the 13 alternative and with permission of the producing party, at the conclusion 14 of the case to destroy any document or other material which is marked 15 CONFIDENTIAL or HIGHLY CONFIDENTIAL, including notes or 16 memoranda 17 CONFIDENTIAL material; (e) 18 made from CONFIDENTIAL or HIGHLY Maintain a list of persons to whom disclosure was made and the 19 CONFIDENTIAL or HIGHLY CONFIDENTIAL materials which 20 were disclosed to that person; and 21 (f) At the conclusion of this action, gather the CONFIDENTIAL or 22 HIGHLY CONFIDENTIAL materials, copies thereof, and related notes 23 and memoranda, and return them to the party or attorney who originally 24 disclosed them, or destroy them, providing a certificate of compliance 25 with the terms of this Protective Order. 26 8. Disclosure Requirements for HIGHLY CONFIDENTIAL information to 27 Competitor Related Consultants: Prior to disclosure, plaintiff(s) will inform the producing 28 party of its intent to disclose HIGHLY CONFIDENTIAL material to anyone who -4112763022.1 1 is currently, or who at any time during the pendency of this litigation becomes, a consultant 2 to a competitor (as such individuals are defined in this Protective Order) in the manner set 3 forth below: 4 (a) 5 designated such information as HIGHLY CONFIDENTIAL of the 6 intent to so disclose that information, although the disclosing party is 7 not required to identify the intended recipient of such materials. 8 (b) 9 3993 Howard Hughes Parkway, Suite 600 Las Vegas, NV 89169 Give at least ten (10) days’ notice in writing to counsel for the party who Within ten (10) days thereafter, counsel for the parties shall attempt to resolve any disputes between them regarding the production of the 10 HIGHLY CONFIDENTIAL material to the intended individuals. (c) 11 If the parties are unable to resolve any dispute regarding such production, 12 within an additional seven (7) days, the party who designated the 13 information in question as HIGHLY CONFIDENTIAL shall file a 14 motion objecting to the proposed disclosure. In making such motion, it 15 shall be the producing party's burden to demonstrate good cause for 16 preventing the disclosure. (d) 17 If the Court permits disclosure of the material designated as HIGHLY 18 CONFIDENTIAL at issue, the information remains designated as 19 HIGHLY CONFIDENTIAL and the individual receiving such 20 information shall be bound by the requirements of this Protective Order. 21 9. Redaction of CONFIDENTIAL Material: The parties recognize that certain 22 FDA, other governmental agencies, and certain federal statutes require redaction of 23 certain information prior to production of certain information by Defendants and that 24 Defendants will comply with those requirements and redact such information as 25 directed. Any party challenging information that has been redacted may do so in 26 accordance with this Protective Order, or otherwise in accordance with the Federal Rules 27 of Civil Procedure. 28 10. Use of CONFIDENTIAL Material at Depositions: All transcripts and exhibits -5- 112763022.1 3993 Howard Hughes Parkway, Suite 600 Las Vegas, NV 89169 1 shall be treated as if designated CONFIDENTIAL for a period of thirty (30) days after 2 the transcript is available from the court reporter. Counsel for any party may designate 3 during the deposition or during the thirty day period after the transcript is available from 4 the court reporter any portion of the transcript as CONFIDENTIAL or HIGHLY 5 CONFIDENTIAL by denominating by page and line, and by designating any exhibits, 6 that are to be considered CONFIDENTIAL or HIGHLY CONFIDENTIAL pursuant 7 to the criteria set forth in this Order. Such designation shall be communicated to all 8 parties. Transcript portions and exhibits designated in accordance with this paragraph 9 shall be disclosed only in accordance with this Order. A party may challenge the 10 CONFIDENTIAL or HIGHLY CONFIDENTIAL designation or portions thereof in 11 accordance with the provisions of this Protective Order. 12 11. Inadvertent Failure to Properly Designate CONFIDENTIAL 13 Material: Inadvertent production of any document or information without a 14 designation of CONFIDENTIAL or HIGHLY CONFIDENTIAL will not be 15 deemed to waive a party's claim to its CONFIDENTIAL nature or stop said party 16 from designating said document or information as CONFIDENTIAL or 17 HIGHLY CONFIDENTIAL at a later date. Disclosure of said document or 18 information by another party prior to such later designation shall not be deemed a 19 violation of the provisions of this Order. 20 12. Inadvertent Disclosure of Privileged Documents, "Clawback" 21 Procedure: Inadvertent production of documents or electronically stored information 22 ("ESI") (collectively "Inadvertently Produced Documents") subject to work-product or 23 attorney-client privilege, or other legal privilege protecting information from discovery, 24 shall not constitute a waiver of the privilege, provided that the producing party shall 25 notify the receiving party in writing as set forth herein. In the event that a party 26 inadvertently produces documents or ESI subject to a claim of privilege, the producing 27 party shall, within ten (10) days of the discovery of the inadvertent disclosure, notify the 28 other party in writing of the inadvertent disclosure. The producing party may, in the -6112763022.1 3993 Howard Hughes Parkway, Suite 600 Las Vegas, NV 89169 1 notice, request a "clawback" of the inadvertently disclosed material. The party receiving 2 such clawback notice shall immediately and diligently act to retrieve the Inadvertently 3 Produced Documents, and all copies, including any loaded to databases, and return them 4 to the producing party or destroy them as agreed between the parties. All notes or other 5 work product of the receiving party reflecting the contents of such materials shall be 6 destroyed and not used. 7 If the receiving party elects to file a motion as set forth below, the 8 receiving party, subject to the requirements below, may retain possession of the 9 Inadvertently Produced Documents as well as any notes or other work product of 10 the receiving party reflecting the contents of such materials pending the resolution 11 by the Court of the motion below, but shall segregate and not use them pending 12 resolution of the motion. If the receiving party's motion is denied, the receiving 13 party shall promptly comply with the immediately preceding provisions of this 14 paragraph. No use shall be made of such Inadvertently Produced Documents 15 during depositions or at trial, nor shall they be disclosed to anyone who was not 16 given access to them prior to the request to return or destroy them unless 17 otherwise ordered by the Court. 18 The party receiving such Inadvertently Produced Documents may, after 19 receipt of the producing party's notice of inadvertent production, move the Court 20 to dispute the claim of privilege. 21 13. Pursuant to Federal Rule of Evidence ("Fed. R. Evid.") 502, there is no waiver of 22 privilege or work product protection in this matter or any other matter in any other 23 jurisdiction for any document clawed-back under this clause, or for the subject 24 matter of any such document, whether the privileged document was inadvertently 25 provided following review or as part of a "Quick Peek" production. In the event 26 that any party receives information produced in discovery from any other party 27 that reasonably appears to be Inadvertently Produced Documents, the receiving 28 party shall promptly notify the producing party in writing of the apparent -7112763022.1 3993 Howard Hughes Parkway, Suite 600 Las Vegas, NV 89169 1 inadvertent production. 2 B. POST DISCOVERY PHASE 3 1. If any party or attorney wishes to file, or use as an exhibit or as testimonial 4 evidence at a hearing or trial, any CONFIDENTIAL or HIGHLY 5 CONFIDENTIAL material, such party must provide reasonable notice to the 6 producing party of the intended use of such information. The parties shall then 7 attempt to resolve the matter of continued confidentiality by either (a) removing 8 the CONFIDENTIAL or HIGHLY CONFIDENTIAL marking, (b) creating a 9 mutually acceptable redacted version that suffices for purposes of the case, or (c) 10 conferring about methods to avoid or limit public disclosure of such information during 11 testimony. Alternatively, for materials being filed with this Court, the party wishing to 12 file CONFIDENTIAL or HIGHLY CONFIDENTIAL material may file a placeholder 13 exhibit on the docket in place of the CONFIDENTIAL or HIGHLY CONFIDENTIAL 14 material. This placeholder exhibit will identify the CONFIDENTIAL or HIGHLY 15 CONFIDENTIAL material by Bates number (if it is a produced document) or by page 16 number (if it is a deposition excerpt, expert report, or some other document). Within 17 three business days, the parties will engage in the meet and confer discussion mentioned 18 earlier in this paragraph, and the filing party will work with the Court to replace the 19 placeholder exhibits with the mutually-agreed upon redacted versions of the 20 CONFIDENTIAL or HIGHLY CONFIDENTIAL materials. 21 resolution proves unsuccessful, the parties may present the issue to the Court for 22 resolution. The proponent of continued confidentiality will have the burden of persuasion 23 that the document or material should be withheld from the public record in accordance 24 with local rules, procedures and governing jurisprudence. 25 2. If an amicable Survival of Protective Order: Throughout and after the conclusion of this 26 litigation, including any appeals, the restrictions on communication and disclosure 27 provided for herein shall continue to be binding upon the parties and all other persons to 28 whom CONFIDENTIAL and HIGHLY CONFIDENTIAL material has been -8112763022.1 1 communicated or disclosed pursuant to the provisions of this Order or any other order of 2 the Court. 3993 Howard Hughes Parkway, Suite 600 Las Vegas, NV 89169 3 3. Return or Destruction of CONFIDENTIAL Material Upon Termination of 4 Litigation: Within sixty (60) days after the final termination of this action, each party, 5 upon request of the other party, shall either return to the producing party, or destroy, all 6 CONFIDENTIAL and HIGHLY CONFIDENTIAL material designated by any other 7 party (including any such material disclosed to third persons), except for any attorneys' 8 work-product for the party returning the material, and shall provide confirmation in 9 writing to opposing counsel if such materials are destroyed. 10 4. Modification of this Order: Nothing in this Order shall prevent any other party 11 from seeking amendments broadening or restricting the rights of access to or the use of 12 CONFIDENTIAL and/or HIGHLY CONFIDENTIAL material or otherwise 13 modifying this Order; and this Order may be amended without leave of the Court by the 14 agreement of the undersigned attorneys for the parties in the form of a Stipulation that 15 shall be filed in this case. 16 17 18 19 20 21 22 23 DATED this 10th day of November, 2020. /s/ Adam D. Peavy Peter C. Wetherall WETHERALL GROUP, LTD. 9345 W. Sunset Road, Suite 100 Las Vegas, NV 89148 /s/ J Christopher Jorgensen J Christopher Jorgensen Nevada Bar No. 5382 LEWIS ROCA ROTHGERBER CHRISTIE LLP 3993 Howard Hughes Pkwy, Suite 600 Las Vegas, NV 89169 Adam D. Peavy [PHV] ADAM D. PEAVY, PC 217 Fleetway Drive Houston, TX 77024 Attorneys for Plaintiff Radha Sathe Manthe [PHV] Aaron Parks [PHV] KING & SPALDING LLP 1180 Peachtree Street NE, Suite 1600 Atlanta, GA 30309 Attorneys for Defendants 24 IT IS SO ORDERED. 25 26 UNITED STATES MAGISTRATE JUDGE 27 DATED: November 10, 2020 28 -9112763022.1 1 EXHIBIT A 2 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 3 4 MICHELLE SOROM, Plaintiff, 5 8 COLOPLAST CORP., a Delaware Corporation; COLOPLAST MANUFACTURING US, LLC, a Delaware Corporation, 9 3993 Howard Hughes Parkway, Suite 600 Las Vegas, NV 89169 AGREEMENT TO BE BOUND BY PROTECTIVE ORDER vs. 6 7 Case No.: 2:19-cv-00866-RFB-EJY Defendants. 10 11 12 I have read and understand this Protective Order, and I agree to be bound by its terms. Specifically, and without limitation upon such terms, I agree not to use or disclose any 13 Confidential Information made available to me other than in accordance with this Protective 14 15 Order. I hereby agree to submit to the jurisdiction of the United States District Court for the 16 17 Northern District of Texas for enforcement of the undertaking I have made herein. 18 19 Dated: Signed name 20 21 Printed name 22 23 24 25 26 27 28 -1112763022.1
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